BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION

CLAIM NO. F707970 (07/06/07)

RICKY A. GASKINS, EMPLOYEE CLAIMANT

JEFF MINNER TRUCKING, EMPLOYER RESPONDENT

GREAT AMERICAN INS. CO. OF NY, CARRIER RESPONDENT

OPINION FILED FEBRUARY 25, 2009

Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on December 4,2008, at Marion, Crittenden County, Arkansas.

Claimant represented by the HONORABLE JEREMY M. THOMAS, Attorney at Law,Blytheville, Arkansas.

Respondents represented by the HONORABLE GUY A. WADE, Attorney at Law, Little Rock,Arkansas.

STATEMENT OF THE CASE

A hearing was conducted in the above styled claim to determine the claimant’s entitlement

to workers’ compensation benefits. On August 5, 2008, a pre-hearing conference was conducted

in this claim, from which a Pre-hearing Order of the same date was filed. The Pre-hearing Order

reflects stipulations entered by the parties, the issues to be addressed during the course of the

hearing, and the parties’ contentions relative to the afore. The Pre-hearing Order is herein

designated a part of the record as Commission Exhibit #1.

The testimony of Ricky A. Gaskins - the claimant, Charles Griggs, Thurman Felix Carr,

and Jeff Minner, coupled with the deposition testimony of Drs. Jason Ganz, Raimantas Drublionis,

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and George William Wood, II, along with medical reports, photographs, and other documents

comprise the record in this claim.

DISCUSSION

There is not a dispute that the claimant sustained serious accidental injuries on July 6,

2007. The principle issue before the Commission at this juncture is whether the claimant was

within the course and scope of his employment and whether he was performing employment

services at the time of the injuries.

Mr. Charles Griggs, a resident of Cherry Valley, Arkansas was a motorist on the State

Highway 63 near Tyronza, Arkansas on July 6, 2007, testified regarding his observations of the

accident involving the claimant:

We was coming back from the trailer, and my wife told me thatshe thought a car was burning. She just smelled something burning. My sinuses have always been bad, so I pulled over to the side of the road and looked. I didn’t see nothing till we got back on the Interstate[Highway 63].(T. 8-9).

The testimony of Mr. Griggs reflects that his cousin, Timothy Laden, who was driving in front of

him, slammed on the brakes, and that it was at that time that he observed something on the back

end of a truck on fire. The truck was parked on the side of the highway. Mr. Griggs testified that

he made contact with the claimant about the same time as he made contact with his cousin, who is

a volunteer fireman with the city of Tyronza.

Mr. Griggs continued regarding his observations:

Yes, we pulled over in front of him [claimant] and we got outand run back to the truck - big truck. (T. 10).

Mr. Griggs remained at the scene of the fire while his cousin, Tim Laden, left to go get the fire

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truck. Mr. Griggs’ testimony reflects, regarding the subsequent explosion:

I had just got in my car. I was gonna pull my car back aroundbehind the truck and turn my flashers on where everybody could see it.

And as soon as I got in the car is when the tire exploded. (T. 11).

Mr. Griggs then returned to the scene and described the claimant’s injury:

Yes. I think it was - his arm was damaged real bad, and hisface was all bloody. You couldn’t really see what really was wrong,but there was blood everywhere, so. (T. 11).

Regarding his observations of the claimant just prior to the explosion, Mr. Griggs testified:

I think he was trying to put the fire out with something. I just- I can’t remember what it was, but I didn’t see no fire extinguisher ornothing.

It was a mat or a blanket or something like that. (T. 13).

Following the explosion and the claimant’s injuries, emergency medical personnel in an ambulance

and a helicopter arrived and the claimant was evacuated from the scene. Mr. Griggs observed

that from the time of the explosion until his removal from the scene the claimant was “pretty much

unconscious”. (T. 14). Mr. Griggs testified:

I tried to communicate with him and stuff, cause he lookedlike he was gonna pass out. I kept on talking and talking and talkingand I got him to say a few things, but not much. (T. 14).

Mr. Griggs’ testimony reflects that the claimant was “laying there beside the big truck” following

the explosion. Mr. Griggs ran over to the claimant’s location and “grabbed him up and I kind of

dragged him over to my car”, following the explosion. (T. 14). The testimony of Mr. Griggs

reflects that as soon as the explosion occurred he called his cousin [Tim Laden] back and told he

needed to hurry up and to call 9-1-1 and let everybody know about the injuries.

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During cross-examination, Mr. Griggs testified that while he did remember exactly what

time of day the accident occurred he recalled it was night time and dark. Mr. Griggs does not

dispute the time reflected on the accident, which was roughly 11:15 , or 11:30 p.m.

Ricky Gaskins, the claimant, with a date of birth of March 18, 1969, currently resides with

his brother in Cherry Valley, Arkansas. The testimony reflects that the claimant was born in

Newport, Arkansas, however while in the 2nd or 3rd grade he moved to Gennessey, Michigan,

where he attended school and spent most of his life. Regarding his residence in Michigan, the

claimant testified:

Moved out of Michigan for a short period of time and went down to Florida. If I’m not mistaken, that was in ‘98, maybe ‘99 -and came back tin 2001, and stayed there until this happened; then Imoved in with my ex-girlfriend, now, in Ohio. (T. 17-18).

The testimony of the claimant reflects that at the time of the July 6, 2007, accident he

lived in Carroll, Michigan, however he was using his parents’ address in Kemp, Arkansas, so he

could get his mail more easily.

The testimony of the claimant reflects that in the early 1990's, he was married to Michelle

Ann Novak, and remained so for approximately 15 years. Claimant is now divorced. Claimant

has four (4) children from the marriage ranging in ages from five (5) to twelve (12) years of age.

The claimant is 6' tall and weights approximately 200 pounds. The claimant has eleven and a half

years of education and does not have a high school diploma or his GED.

The claimant was employed as a professional truck driver having obtained his CDL.

Claimant obtained his training through CDL Truck Driving School in Saginaw, Michigan,

approximately four (4) years earlier. The course was a thirty (30) day program that entailed

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learning how to move the vehicle safely up and down the road. The claimant’s training was paid

for by the State of Michigan because the claimant was coming off of Social Security Disability.

The testimony of the claimant reflects that he begin his employment history working at a

McDonalds in Gennessey, Michigan at the age of 17 or 18. The claimant’s McDonalds job lasted

for approximately six (6) months. Claimant explained that he stopped work for McDonalds

because of “severe back spasm problems”. The afore served as the basis for the claimant’s receipt

of Social Security Disability benefits. The claimant did not work during the time that he was on

Social Security Disability.

Claimant came off Social Security Disability when he got enrolled in the CDL school. The

claimant explained the mechanics of the afore:

Well, first I had to get doctors to say it was okay for me to work,and once - they wouldn’t say that until I could go through one (1) fullcalendar year without having a back spasm. (T. 22).

The claimant initiated the process on his own. Claimant maintains that he has not experienced any

back spasms since that time.

The claimant’s work history since coming off Social Security Disability and obtaining his

CDL has consisted of truck driving jobs. The claimant’s first job as a truck driver was with C.R.

England out of Salt Lake City, Utah, for which he was paid 29 cents per mile and remained in the

employment for ninety (90) days. Claimant left the employment of C.R. England for U.S. Express

because he did not wanted to buy a truck. Claimant explained that the set-up with C.R. England

was that you would buy the truck that your were driving and he did not want that. In his

employment with U.S. Express claimant was paid 32 cents per mile and remained in the

employment of same for eight (8) or nine (9) months.

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After leaving U.S. Express claimant drove for Polectic (phonetic) Transportation which

was based out of Elkhart, Indiana, because his brother was employed there, and remained so

employed for four (4) months. The claimant was next employed by Smithway Motor Carrier,

SMX, out of Ft. Dodge, Iowa. Claimant explained that the reason he changed jobs was because

he wanted to get into flat-bedding. The testimony of the claimant reflects that he received

additional training to do flat-bedding. Claimant received the additional training with Smithway

Motor Express in the form of on-the-job training and classes:

A little of both. Got there, you had to sit through orientation and show them that you knew what you were talking about, pass the written exam, and then they took you out for, like, six (6) weeks on theroad with a trainer.

And our deal was making sure, since I had prior driving experience,that I knew how to secure my loads. (T. 27).

Claimant elaborated with respect to securing the load on a flatbed:

Well, making sure that you put something down so the forkliftscan reach up under the load to pick it up, or the crane, or whatever they’re using to unload you; chains or straps; corner protectors; tarping.(T. 27).

Claimant was employed by Smithway Motor Express for eight (8) months.

After leaving the employment of Smithway Motor Express the claimant went to Dallas

Mavis where his first job was with Jack Spears out of Indianapolis, Indiana. Claimant received a

percentage of the load - 25% of 75%. Claimant remained in the afore employment for

approximately four (4) months before going to the employment of Jeff Minner, respondent-

employer.

The testimony in the record reflects that Jeff Minner’s operation is a Dallas Mavis

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operation. Claimant explained that he changed from Jack Spears to Jeff Minner because he did

not like driving an empty load and not getting paid from California back to Indianapolis.

Respondent-employer Jeff Minner operates out of Sikeston, Missouri. Claimant’s testimony

reflects how he acquired of respondent-employer and why elected to pursue employment with

same:

Well, Dallas and Mavis has got the sheets of all the companiesthat join together to make that company, and the drivers switch amongstthem and where you could possibly pick up loads from. (T. 30).

Claimant noted that Sikeston, Missouri is in close proximity to his relatives residing in North

central and Northeast Arkansas, and as such it would afford him greater opportunity to visit

them from time to time.

The testimony of the claimant reflects that he started working for Jeff Minner about a

week to a week and a half before his injury on July 6, 2007, estimating that the incident occurred

during his third load. Claimant testified that during his employment with respondent-employer he

had hauled two (2) loads of steel and one (1) load of flat rocks. Claimant was paid 25% of the

load once it was delivered. While respondent-employer owned the truck that the claimant drove,

claimant was uncertain of the owner of the trailer.

Regarding the event of July 6, 2007, which serves as the basis for the present claim, the

testimony of the claimant reflects that he was hauling I-beams steel in a vehicle owned by

respondent-employer. The load of steel was picked up at Nucor Steel in Blytheville and secured

with chains. In explaining the manner in which the load was secured, the testimony of the

claimant reflects:

Well, when I pulled up to get the load, I had to lay the four (4)

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by fours (4) down on the deck of the truck - and took the wood - steeland put it on and belt it up like it was supposed to be.

Then, I took chains and binders and strapped them down to thetruck according to the DOT regulations on how you’re supposed to doit.

Well, I put the chains over the load and - tow (2) in the front, two(2) in the - at the very back of the trailer, secured the chains, and tightenedthem up where they wouldn’t let the load shift and/or fall off and thenevery six (6) foot in between you’d throw a chain and secure it the sameway. (T. 34-35).

Claimant further testified, regarding securing the load in accordance with DOT regulations:

Okay, you pull the chain, put the binder on then pull it tight at the other end, hook that - hook on to it, then you grab a hold of the lever with- if you can - you put your pipe on it then lock it down in place, then youtake the excess chain, wrap it around the handle so it will not come undonegoing down the road and use a bungee to hold it in place.

About the firs (1st) fifty (50) miles down the road DOT regulationsask you to stop to recheck you load, making sure it’s secure, then everyhundred-fifty (150), two- hundred (200) miles you’re supposed to stop and check your load again. (T. 35-36).

Claimant noted that he always inspect his vehicle when climbing in and out of it. In terms of

inspecting the vehicle before leaving with a load, claimant elaborated:

Well, there’s about a hundred (100) points of interest of doinga vehicle - a complete vehicle inspection. Checking the tires, the lugs,the mechanicals of the vehicle, the coupling area, the lights. (T. 36).

The testimony of the claimant reflects that on July 6, 2007, he went to the office of

respondent-employer in Sikeston, Missouri, to find out where his next load was and where he was

going. Claimant added that he double-check the vehicle and also had someone else double-check

it of him. Claimant acknowledged that at times he received his load assignment from a dispatch

call, however on that particular occasion he was close enough when he dropped off his last load

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that he came to the yard. Claimant was informed that there was a load to be picked up at Nucor

to be transported to the Fort Worth/Dallas area.

The testimony of the claimant reflects that he arrived at Nucor while it was still daylight,

between 7:00 and 8:00 p.m. Claimant continued:

It took me a couple of hours to get in, loaded, and secure the loadand on the road. I don’t remember roughly how many hours. So, if thatput - okay. But I do remember pulling out there in the hours, though. (T. 38).

Claimant testified that had personal contact with Jeff Minner before the took out on the trip, and

that he talked with him about the trip. Regarding his discussion with Mr. Minner, claimant

testified:

I basically asked if I could go to my grandma’s because she was in the - been in and out of the hospital with a lot of heart problems and Iwanted to see her. (T. 39).

Claimant added that he would do a restart on his log book thereafter. The testimony of the

claimant reflects regarding that particular load:

I requested to try to get a load where I could see - go through andsee her because when I was taking that load out she was in bad shape andwe didn’t think she was going to hang in very much longer. (T. 39).

The testimony reflects that the claimant’s grandmother lived in Beedeville, Arkansas, an

area close to Newport, Arkansas, which is south of Jonesboro. In describing the route he

intended to take to get him from Blytheville, where he picked up the load, while at the same time

going through Beedeville to see his grandmother, and down to Little Rock thereafter proceeding

to the Ft. Worth/Dallas area where the load was to be dropped off, the claimant testified:

Fifty-five (55), Sixty-Three (63), stopped at - if I’m not mistaken,I think it was thirteen (13) I would need to jump onto to get into - at Grandma’s and back on Sixty-Three (63) to Sixty-Seven (67). (T. 40).

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Claimant testified that he was on Highway 63 in the area of Tyronza head west from

Interstate 55 at the time of his injury. Claimant acknowledged the Oversize and/or Overweight

Permit issued in connection with the load identified the route to be taken as highways 18, 55,40,

440, and 30. (CX. #1, p. 662). Claimant also observed that the instrument contained an alteration

or someone had crossed out highways 18, 49, 14, 67, and 30. Claimant testified that highways 14

and 67 intersect in the Newport area. Claimant concedes that highway 63, the location of his

injury, is not listed on the permit, and that he was taking a different route to Little Rock than that

specified on the permit.

With respect to the events leading up to his July 6, 2007, injuries, the claimant’s testimony

reflects:

All I remember is something caught my attention to the fire.I stopped the vehicle, set the brakes, got out and started fighting the fire. (T. 44).

In the aftermath, claimant testified he found out that the fire was around the tire area of hte

tandems - the drive tires in the back, on the driver’s side. Claimant continued:

I commenced stopping the vehicle, set the brakes, jumped out,and opened a little hatch and got the fire - to fight the fire. (T. 45).

Claimant retrieved the fire extinguisher from a small door on the driver’s side of the truck.

Claimant has no recollection of seeing anybody at the accident scene.

Claimant was unaware who owned the steel that the was delivering. Regard whether he

would have been paid if the load burned up, claimant added:

I believe I would not got paid because I did not deliver my loadand/or done my job. (T. 46).

Claimant explained his reasoning for attempting to put out the fire:

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To protect the truck and the [to] make money. As I was lookingat it, it was gonna cost a couple hundred dollars to replace a single tireversing several thousand dollars - like twenty (20), thirty (30), thousandor more, replacing of the truck. (T. 46).

The claimant’s only recollection after walking back to put out the fire was waking up four (4)

days later in the hospital.

The testimony of the claimant reflects that he has spoken with Jeff Minner, owner of

respondent-employer, several times since the July 6, 2006, accident:

Probably about three (3) or four (4) times, and it was - the first timewas about four (4) days after the incident, to basically let him know - I wastrying to let him know what happened. (T. 47).

Claimant testified that he put out the fire on the truck because he “felt like it was part of my job”.

(T. 52).

With respect to the injuries suffered in the accident, claimant testified that the entire left

side of his body was injured, explaining that if it was not burned, it was crushed, or broken

severely. Claimant continued:

When I woke up in the hospital, I did not have eye sight for a couple of days - until they removed the patches off my eyes, then I was able to see. (T. 48).

The testimony of the claimant reflects that his most severe injury was to his left arm and hand.

The claimant was left hand dominate prior to the accident. The claimant has not been released to

return to work by any of his treating physicians. The testimony of the claimant reflects that he

was in the hospital for approximately ten (10), after which time he was discharge and moved in

with his brother.

Regarding his current physical capability to drive, the testimony of the claimant reflects:

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I have not physically tried, except moving a vehicle aroundthe driveway one (1) time, and I hit - a tree jumped out and got me,and that was one (1) day last week. (T. 52).

The claimant received state assistance from the State of Ohio following his accident. Claimant

explained that he went to Ohio to be with his ex-girlfriend and to get medical care. Claimant

testified that he last saw a doctor, Dr. Wood, the day before Thanksgiving in November 2008, to

get a disability rating. The claimant now lives in Cherry Valley, Arkansas with his brother and

plans to seek occupational therapy. The claimant applied for Social Security Disability, however

was denies. Claimant is currently pursuing the afore.

During cross-examination the claimant acknowledged that he first went to work for Dallas

Mavis in 2006 after obtaining at least six (6) months of flatbed experience with SMX. Claimant

confirmed that one of the reasons he wanted to associate with Jeff Minner was because he had

family in the area ranging from St. Louis to Texarkana. In terms of visiting with family members

while driving for respondent-employer, the testimony of the claimant reflects that he would make

sure that his log hours were okay, and then he would contact family members and they would

come over and join him somewhere for a meal or a cup of coffee. The testimony of the claimant

reflects that sometime he would go to the family member’s home and sometime he would not.

Claimant concedes that most times the family members would meet him while he was in route.

Claimant does not disputed that the accident of July 6, 2007, occurred between 11:15 and

11:30 p.m., when clearly dark outside. The testimony of the claimant reflects that any time he

went through Sikeston, Missouri he stopped by the yard of respondent-employer, where

mechanics would come out and look over the truck.

The claimant acknowledged that it was late afternoon and close to closing time when he

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was in the Sikeston, Missouri yard of respondent-employer on July 6, 2007. Regarding his

instructions regarding the Nucor steel load at Blytheville, claimant testified:

I personally don’t remember, but I think I got it from Jeffhimself, there are [in] the office. (T. 61).

Claimant’s testimony reflects that he usually go through the dispatch to get his instruction when

he is outside the home turf. The claimant testified that to the best of his knowledge he left

directly from the yard of respondent-employer to go to Nucor Steel.

Claimant concedes that it was close to getting dark at the time he got his load in

Blytheville. The Nucor Steel load, steel I-beams, was a permitted load. Regarding the permit in

the exhibit, and whether he would have had it, claimant responded:

Well, like I said in Ohio, I don’t know who crossed out one(1) route and put a different route in, but looks like a permit. (T. 62).

The claimant acknowledged that he would have been in possession of the permit before he could

leave Nucor Steel with the load, having obtained it either when he picked up the load, or when he

was with Mr. Minner or through dispatch. Claimant testified that the load was a permitted load

because of the length of the freight that he was transporting. Claimant offered that if he did not

have the permit in his possession while transporting a permitted load he would have possibly

received a ticket if he stopped by law enforcement officials.

Claimant acknowledged that per the permit, the highways identified as his route were

Highway18, Interstate 55, Interstate 40, Interstate 440, and Interstate 30. The highways marked

through on the permit were Highway 18, Highway 49, Highway 67, and Interstate 30. Both

routes lead to the Texas state line. The claimant’s July 6, 2007, accident occurred in an area

north of Tyronza. Claimant acknowledged the Highway 63 is not indicated on the permit.

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Additionally, the claimant concedes that Beedeville, Arkansas is not on Interstate 55, Interstate 40

or Highway 67.

Claimant acknowledged that while driving on Highway 63 on July 6, 2007, he had left

both routes specified on the permit because he was traveling to see his grandmother in Beedeville,

Arkansas. Claimant added that he had been given permission to see his grandmother by

respondent-employer, Jeff Minner. The claimant testified that he had no independent recollection

of exiting onto Highway 63 on July 6, 2007, attributing his lack of memory to residual of the

injuries suffered in the accident. Claimant acknowledged that his vehicle was actually heading

northwest on Highway 63 at the time of his injuries.

The testimony reflects that the claimant’s objective was to see his grandmother in

Beedeville and “get my re-start”on his log. Claimant concedes that the visit to his grandmother

was for personal reasons and not required by his work. Claimant acknowledge that he did not

contact or call the Arkansas Highway and Transportation Department to get the permit changed

or modified:

No. When I told Jeff I need - I got permission to go see myGrandma, I told her she was in Newport - not Newport, but Beedeville - and I just assumed that he had that permit written up the correct way.(T. 70).

Claimant further responded regarding requesting his employer to change or modify the permit:

That’s correct. But when your employer tells you you can go andvisit your Grandmother and you let him know that she was in Beedeville,that you - and you know it was a permit load, you just put everything together and believe that he would have got that permit to going through for me. (T. 71).

Claimant maintains that once he got all of the papers he did not look at the route or anything.

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The testimony of the claimant reflects that it was his intention to travel from Highway 63

to Highway 14 in order to reach Beedeville. Claimant testified that the reason he decided to

forego Highway 42 in traveling to Beedeville was because it is not a designated truck route. As

far as the actual accident, claimant testified that he did not recall physically running over anything.

The testimony of the claimant reflects that while living in the Sate of Ohio recuperating

from the injuries growing out of the July 6, 2007, accident he received medical treatment, and the

bills for which were paid by the State of Ohio. The claimant received medical treatment under the

care of Drs. Ganz, Drublionis and Hersheroder as well as physical therapy, all of which was paid

by the State of Ohio. The claimant also received $115.00, a month in cash payments and

$172.00, per month in food stamps. The claimant moved back to Arkansas approximately three

(3) weeks prior to the hearing.

Thurman Felix Carr, an officer with the Arkansas Highway Police, testified that he is a

Motor Carrier Safety Inspector for the State of Arkansas. Officer Carr described his job duties:

It involves inspecting motor carrier trucks such as eighteen (18)wheelers, small trucks; we regulate the safety aspects of it, as well as the driver aspects of it; we inspect the loads; we inspect their routes; weinspect to make sure they’re in compliance with the hours of service, as well as with the safety aspects of it. (T. 79-80).

Regarding the enforcement of the permits issued by the Arkansas Highway and Transportation

Department Office Carr testified:

Yes, we are - we do enforce the over-sized, over-width, over-weight,over-length permits t make sure that they are in compliance with the registered weight that they’re permitted for, as well as their routes, as wellas the width. (T. 80).

The testimony of Officer Carr reflects that the route is determined before the load is transported:

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Yes, they have to call it in to the permit section and the permit section will, in turn, issue them a route to ensure the safety of the motoringpublic, as well as the deterioration of bridges and roadways and to stop congestion on the interstates and two (2) lane highways.

A permit is issued to keep the motoring public safe, meaning byover-sized, making sure they don’t get into an area that is congested andthe permit section will, in turn, give them a route to keep them out and around certain areas that are not wide enough for them to make the turn,or they might have a bridge that might not be tall enough, if it’s over-height. If it’s over-width, it might not be wide enough for them, or, whengoing through construction zones, we have width restrictions that prevent the over-sized loads from going through there on the width portion of it.On the length portion of it, it’s to ensure that they are able to maneuverfreely and safety through the cities in which they are permitted. And theseroutes are designated by permit techs, as well as engineers, who go out andthey will, in turn, get the width and the length and the height and the weightof the equipment being transported to make sure that it doesn’t damagethe roadways, the bridges, or the railroad crossings. (T. 80-81).

In terms of the appropriateness of the various state roads and bridges Officer Carr added:

Yes, we have a computer-generated program now which will, in turn, tell the company what route that they have to stay on to keep it safeand to make sure that the roadways aren’t damaged. (T. 81).

The Permit Section of the Arkansas Highway and Transportation Department is charged with the

responsibility of determining the designated/appropriate route to be used on a particular permit.

Regarding the permit entered into evidence in the present claim, CX. #1, p. 662), Officer Carr

testified:

This is a over-size permit that was issued to a company on July the 6th , 2007, which is a - the maximum length is the issue here. The weight is legal, the width is legal, and the height is legal, so the main issuewas the width of the load and the vehicle that was being transported. It was given specific routes that were marked via highway numbers at the bottom. (T. 82).

Office Carr had no knowledge as to who marked through the numbers on the permit. Officer

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Carr’s testimony reflects, regarding the highways identified on the permit:

Well, they chose - the majority of them are all interstate systems.There’s only one (1) U.S. Highway, and that’s Eighteen (18). The restis Interstate Fifty-Five (55) to Interstate Forty (40) to Four-Forty (440)to Interstate Thirty (30), which are all via - it stays on the Interstate system.It doesn’t go into small towns. (T. 82-83).

Officer Carr describes the afore as the norm for permits.

Officer Carr testified that he is familiar with Nucor Steel and its location. Further, the

testimony reflects that U.S. Highway 18 is about the only way to Interstate 55, in permitting a

load out from the factory to the Interstate system. Office Carr observed regarding the permit in

the evidence:

It is very route-specific. It doesn’t allow you to deviate fromthe route. (T. 84).

Officer Carr continued with respect to the specificity of the routes on the permit:

No. All the routes are route-specific and don’t allow you to deviate from them unless you contact the permit section and have it amended, and then they have to - the permit section has to research it and agree that you can leave that route. (T. 84).

In the event a party wanted or needed to change a route, Officer Carr’s testimony reflects:

They would have to contact the permit section.

They [permit section] would amend it. They would research which route that they wanted to take and make sure that it was safe andthat the roadways and the bridges could support the weight, if it was aweight, and if there were no width restrictions there, that they couldfreely and safely move about on that interstate system - on that highwaysystem. (T. 84-85).

The testimony of Office Carr reflects that the driver would have to stop at a rest area or

truck stop in order to have the amended permit faxed to him. Officer Carr added that some

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trucking companies are equipped with fax machines and electronic e-mails so that the amended

permit can be transmitted while the load is in transit. Office Carr testified that before a driver

deviated from the route on the permit, he should be in possession of the amended permit showing

that he is deviating from his original route to a secondary route. Office Carr testified regarding

the actions he would take in pulling over a driver that did not have the permit in his possession:

Well, our protocol is to - if they are over-weight, we would issuethem a citation for the over-weight; if they’re over-width, we would issuethem a citation for the over-width; if they’re over-length, we would issuethem a citation for over-length; if they’re over-height, we issue them a citation for over-height. If they’re off their route, then we would shut themdown there at that specific point, at a safe location, and then have them contact the permit section and have them re-issue another permit for themto make sure that they can safety travel on.

* * *

Yes, to get them back to the route which they were suppose tohave been on anyway. (T. 85-86).

In the instant claim, the claimant’s accident occurred close to Tyronza. Office Carr also

had an opportunity to review the accident report relative to the claimant. The accident occurred

on Highway 63. Officer Carr offered that while Highway 63 is a permissible highway for the

particular load that the claimant was transporting, “it’s not permitted on this route”. Officer

Carr’s testimony reflects his course of action had he encountered the claimant on Highway 63

with the permit in evidence:

He would have been - the permit would have been voided and he would have been issued a citation, and he would have not been allowed to move until he got another permit, permitting him back onto his route. (T. 87-88).

Based on the permit issued for the claimant’s load, Office Carr testified that the claimant’s

19

presence on Highway 63 was illegal. Office Carr distinguished a state highway from an interstate

highway:

State highways are normally two (2) lane highways. Interstatehighways are normally four (4) lane highways - always four (4) lane highways. (T. 88).

Office Carr testified that neither a driver, employer or dispatcher is authorized to change a route

of a permitted load without first contacting the permit section of the Arkansas Highway and

Transportation Department.

During cross-examination, Office Carr testified that he was familiar with U.S. Highway 63

and that the same is a four lane highway. Officer Carr acknowledged that each of the road listed

on the permit are roads that are capable of servicing and over-size truck. Office Carr concedes

that had he seen the claimant’s truck turning from Intestate 55 onto U.S. Highway 63, without

knowledge of the permit route he would not think that it was unusual in any way. The testimony

of Office Carr reflects that each of the highways on the permit that are cross out are safe for over-

size loads. Officer Carr further testified:

They normally like to keep over-sized loads on to major and- thoroughfares, like I say, for the purpose of being able to maneuver freely to prevent congestion and when you start getting off that onto two (2) lane highways they don’t look the same on the map once you get out there and start driving on them because see - because of differenttypes of intersections as well as railroad crossing and bridges, but, youknow, they will, in turn, permit them, you know if they are coming froma certain area, then, of course, they will put them on that highway. Ifthey were coming off of Forty-Nine (49) . . . (T. 92-93).

Officer Carr has no responsibility for the issuance of the permits, however offered

regarding the presence of two (2) sets of number on the permit in evidence:

Unless the permit was ordered, because this is a hand-written

20

permit.

And, a lot of times, before we went computerized, the permit was faxed to them as such, but as of June - July 6, this permit could have possibly came from the permit tech who started to writ the permitout to go Eighteen (18) to Forty-Nine (49) to Fourteen (14) to Sixty-Seven (68), and then amended it and crossed through it and put it on Eighteen (18) to Fifty-Five (55) to Forty (40) to Four-Forty (440) to Thirty (30), but other than speaking with the permit tech, which, that’shis number there, I could not - I couldn’t answer that. (T. 94).

Jeffrey Keith Minner is the fleet owner of trucks, all of which are lease on to Dallas-Mavis

Specialized Carrier. Mr. Minner’s business is located in Sikeston, Missouri. Mr. Minner’s

testimony reflects that the claimant commenced working for his as a truck driver approximately a

week to a week and a half before the event of July 6, 2007. Mr. Minner’s testimony reflects that

the claimant stopped by the Sikeston, Missouri yard of respondent-employer late afternoon on

July 6, 2007:

Yes, he had unloaded his previous load in Sikeston, and he cameby the shop. Any time a truck is close or passing through, we like to take a quick look at it and make sure everything’s good on it, and so hewas there, briefly. I’m - I don’t know exactly the time - I’m gonna saymid- afternoon. (T. 97-98).

Mr. Minner continued regarding his conversation with the claimant on July 6, 2007:

Just asked him how things were going; he turned in a little bit ofpaperwork cause it was towards the end of the week. He told me thatdispatch had him a load going to Texas, and he had told me earlier that his Grandmother had been ill and he would like to go through to see her,so, whenever he told me that they had him a load going to Texas, you know, he was pretty happy about that. (T. 98).

Mr. Minner testified regarding the details in the inspection of the fleet vehicles at the

Sikeston, Missouri yard:

Yeah, that day I think there was probably two (2) guys in the shop

21

and, typically, when one (1) comes in and if they know the truck’s notgonna be there very long, then they stop what they’re doing, they pull itup in front of the shop, and do a visual and walk around, get under it, andyou know, just make sure there’s not anything out of order. (T. 98).

Mr. Minner added that the inspection is thorough:

Yeah, because it - we have two (2) of them, and they go - we start at the front and go to the back, and I’d say if there’s anything foundout of line, then they make me aware of it, and then we’ll, you know, hold the truck up and make sure that it’s repaired. But when there’snothing found out of line on a routine check-over like that, then, youknow, the guy’s good to go.

Well, just a preliminary check like that, I mean, I’d like to thinkthat - there are even two (2) guys, you know, in a situation where they’reat a shop like that, you know, I’m gonna say it would be a good thirty(30) minute situation because, like I say, you have to put a gauge on every tire, you have to look at all the wheel seals, you want to visuallycheck all the lights, front and back, and raise the hood, you know, checkall the coolant levels. You know, there’s a lot of things to check. (T. 99).

The testimony of Mr. Minner reflects that he was not aware that the claimant’s load of

July 6, 2007, was a permitted load. Mr. Minner testified regard the manner in which the claimant

received his instructions regarding the availability of the load:

No, I don’t dispatch the trucks. All the dispatch on the trucks is done in Blytheville, Arkansas, and that’s about seventy (70) miles southof me. So, the driver’s stay in touch with dispatch, and whenever - they’reinstructed to call in every morning - you know, basically, a couple of timesa day, and then when they’re reaching their destination and gonna be unloaded, they need to stay in touch with dispatch so that dispatch can give them their next load instructions. So, whenever he unloaded in Sikeston,then he’s in touch with dispatch, and dispatch is not in my office. (T. 100-101).

Mr. Minner’s testimony reflects that the load is already dispatched before he finds out where it

going through the receipt of faxes at the end of the day. Mr. Minner added:

So, I don’t - I don’t order permits, I don’t route them, I don’tdispatch the trucks or anything like that. (T. 101).

22

Mr. Minner observed that it is not unusual for his drivers to have permitted loads. Mr. Minner

noted that a lot of loads are hauled out of Nucor Steel and are over-length loads requiring

permits. The testimony of Mr. Minner reflects that the dispatch get the permit. Regarding the

manner in which the permit get into the possession of the driver, Mr. Minner testified:

Oftentimes, if the driver is going to be loading at Nucor, then dispatch office is just a few miles from there, right on Interstate Fifty-Five(55), so, oftentimes, they’ll go by and pick up the permit.

The driver will go pick up the permits. Now, it’s very common,also, that the permit may not be there at the time, so they’ll fax the permitsto the drivers. (T. 101-102).

The driver would be in possession of the permit before leaving Nucor Steel with the load.

Mr. Minner testified that he has never instructed one of his drivers to go somewhere other

than what the driver was instructed on the permit. In terms of the mechanism for changing the

route designated on the permit, Mr. Minner’s testimony reflects:

Well, they’d have to contact dispatch and dispatch would have tocontact the State to go about changing it, but, I mean, they’re not to -they’re not to vary from the routes on the permits.

Well, I’m not - I don’t know how you get, you know, amend one.They would go - they would have to call dispatch because that’s - I don’torder the permits or dispatch the trucks. I don’t know. (T. 102-103).

Mr. Minner acknowledged the discussion with the claimant regarding the claimant wanting to see

his grandmother in Beedeville. Mr. Minner maintains that at the time of the afore discussion he

was unaware that the claimant’s load was an over-sized load. The testimony of Mr. Minner

reflects that there was not a work-related reason for the claimant to go to Beedeville, Arkansas.

Mr. Minner’s testimony reflects that there was no reason for the claimant to ben on

Highway 63, where the accident occurred, other than proceeding to see his grandmother in

23

Beedeville. Mr. Minner noted that U.S. Highway 63 is not the most direct route to Texas with

the load that the claimant was carrying.

Mr. Minner denied that he ever instruct the driver with regard to the necessity to fight a

fire or to do anything to a fire that may occur on the truck or trailer of respondent-employer.

Regarding his response to a driver if contacted regarding a fire on the truck or trailer, Mr. Minner

testified:

Well, if that question was ever posed to me, if there was anequipment fire, the first thing I would tell them is to get away from itas quickly as possible, a safe distance, and then do what they could to alert the authorities or stop traffic, you know, try to protect the public from getting any closer to it. But the very first thing I would want themto do is to get away from it.

No, because that - there’s no piece of equipment worth someone’spersonal safety and I wouldn’t want to get anybody to do that. (T. 105).

Mr. Minner testified that he has never told the claimant that he had a duty or responsibility to

fight a fire on respondent-employer’s trucks or equipment.

With respect to his expectation regarding the route that one of his dispatched drivers

would take, Mr. Minner testified:

Well, once someone has enough experience to be able to qualify with Dallas-Mavis, then you have certain expectations that if a load is picked up at Point A, going to Point B, then it’s gonna - you’re gonnatravel in generally the shortest route. Now, that’s - that’s - we don’t routethe trucks, by and large - we have guys that have a lot of experience and so you’re - if someone is way out of route, at some point, you’re gonna know about it. Either it takes them too long to get there or they use toomuch fuel, so that’s just not an issue, where, you know, guys are - you havean expectation that they’re gonna go one (1) of the shortest routes there. (T. 106).

Further, Mr. Minner testified that if the driver had a permit and a route specified on the permit,

he would expect the driver go the route on the permit. Mr. Minner added the he would not allow

24

any deviation with regard to a permit route. Mr. Minner offered that had the truck and trailer that

the claimant was operating on July 6, 2007, burned completely, the claimant would not have been

docked as a result of same, nor charged for the cost of the truck, trailer, or tires. The testimony of

Mr. Minner reflects that he was unable to make a determination of the cause of the fire to the

claimant’s truck which ultimately resulted in his injuries.

The operation of respondent-employer is entirely flatbed. It is not uncommon for loads

transported by respondent-employer to be over-sized, nor is it uncommon for loads from the

Nucor Steel plant to be over-sized. Mr. Minner’s testimony reflects that he was aware during his

conversation with the claimant on July 6, 2007, that the claimant was going to Nucor Steel.

Further, Mr. Minner concedes that there was a very good chance that the claimant wold be

hauling out of the Nucor Steel Plant with an over-sized load. (T. 110). Mr. Minner

acknowledged that the claimant “specifically, mentioned that he was gonna - that he wanted to

stop on his way down there to see his grandmother”, and that he said that it was fine. Mr. Minner

did not check to see if the load the claimant would be transporting was over-sized.

The truck operated by the claimant on July 6, 2007, which caught fire, was owned by

respondent-employer. Mr. Minner testified he had not found out definitely how the fire started,

noting that the truck stayed at the wrecker facility of a couple of months:

I’m assuming there was a lot of insurance people and stuff likethat looked at it but, no, ever since they released it, and . . . (T. 112).

With respect to whether he considered the task of the driver in keeping the public away from the

fire and calling for help a part of their job, Mr. Minner testified:

I don’t know how the - you know, I have work comp - I don’tknow how that law would be defined. I think that’d be up to the insurance

25

companies to decide that. (T. 112).

Mr. Minner concedes that the driver would not have a personal reason to keep the public away

from an equipment fire and to summon help from the fire department. (T. 113). Mr. Minner

continued:

Well, once it’s on fire, I don’t want anybody getting around it unless it’s trained personnel from the fire department. (T. 115)

Mr. Minner’s testimony reflects that once the claimant left his route to visit his grandmother, he

considered the claimant to be on his own. (T. 117).

Mr. Minner acknowledged that the claimant was paid a percentage of the load, which was

different than being paid by the mile. The permit, #440056, which was issued in connection with

the claimant’s load from the Nucor Steel Plant, was valid for two (2) days, July 6, 2007 through

July 8, 2007. Accordingly, the claimant’s payment was dependant upon him getting the load to its

destination in the Dallas/Ft. Worth area by July 8, 2007. Respondent-employer did not direct the

route of its driver in delivering a load. Respondent-employer was responsible for the cost of fuel

utilized by its drivers.

Mr. Minner concurred that the claimant probably made three (3) or four (4) loads during

his employment with respondent-employer. With respect to whether either of the claimant’s load

prior to that of July 6, 2007, originated at the Nucor Steel plant, Mr. Minner testified:

I would have that information - off the top of my head, I can’tsay that. I’m gonna - it’s a real good chance that his very first load couldhave been because he had to come to my location to get the truck and thenwe always come to Blytheville to load. Now, every load coming out ofBlytheville is not a Nucor load, but there’s a good chance that his veryfirst load out the gate was a load of steel out of the Nucor, but I can’t tellyou for certain right now, without going back and looking. (T. 119).

26

Mr. Minner is unable to say whether either of the claimant’s prior loads in the employment of

respondent-employer before that of July 6, 2007, required the issuance of a permit by the

Arkansas State Highway and Transportation Department. With respect to the claimant’s

acquisition of the permit, which was required before departing the Nucor Steel Plant with the

load, Mr. Minner offered:

That’d be my first guess, yes [that the claimant picked it up atthe dispatch office in Blytheville]. I mean, that’s routine, you know,cause I’m north of Blytheville and [in] Sikeston, so when they’re comingdown Fifty-Five (55) it takes - that’s about seventy (70) miles to the Stateline. The office is near the State line, so they would swing over on oldSixty-One (61), get their permit, any load information, and then get backon Fifty-Five (55), go down to Eighteen (18), and go out to the mill. I mean, it’s very routine for them to go from my place to dispatch to Nucor.(T. 120).

During re-direct examination, the claimant explained his plans to re-start his log once

spending the night at his grandmother’s residence:

Well, after you spend so many hours, when you shut down the truckso many hours, if I’m not mistaken, it was thirty-four (34) hours, you gainyour seventy (70) hours back for driving. (T. 122).

Claimant testified that while he does not remember where he picked up the permit, he does know

that he had it in the cab of his truck before he left the lot at Nucor with his load.

The Arkansas Uniform Incident Report relative to the July 6, 2007, accident involving the

claimant reflects, in pertinent part:

Operator Ricky Gaskins of vehicle 1 was traveling south on US 63 whenthe left rear, inside dual went flat on his truck. Gaskins continued drivinguntil he was flagged over by motorist Quincy Perry and Stanley Hister whosaw that the tire had now caught fire. Perry and Hister were able to get Gaskins attention and had him pull over where they told him about the fire. Gaskins then got out of his truck and was attempting to find his fireextinguisher. At this time Timothy Laden and Charles Griggs pulled up

27

to help Gaskins. Griggs and Laden advised they spoke to Gaskins and told him to stay away from the fire and that they would call the fire Depart-ment. Laden, being with the Tronza Fire Department then left to go get afire truck. Griggs advised that Gaskins was standing by the truck tires thatwere on fire when one of the tires blew out burning Gaskin. Griggs then helped Gaskins back to his vehicle and awaited fire and rescue to get to thescene. Gaskins was airlifted to the Med in Memphis where he is being treated for his injuries. (CX. #1, p. 656-658).

Neither the extent nor severity of the injuries sustained by the claimant in the July 6, 2007,

accident is disputed. The medical records detail the medical treatment received the claimant in

connection with the July 6, 2007, accidental injuries. In addition to the medical records and bills,

the record also reflects the presence of the deposition testimony of three (3) of the claimant’s

treating physicians.

During his November 19, 2008, deposition, Dr. George William Wood, II, Board certified

in orthopaedic surgery since 1979, testified regarding his education and training, as well as his

contact with the claimant following the July 6, 2007, accident. Dr. Wood’s testimony reflects,

regarding his current area of medical practice:

Well, right now, I’m doing upper extremity. I have done justabout everything at the Campbell Clinic. When I first came, I did general orthopaedics with an emphasis on upper extremity. Then, Iwent to spine. I did spine almost predominantly until the mid ‘90s.At that point, I had moved over to The Med and was working overthere. So I was doing a heavy emphasis on trauma. And it was justin July of this year that I left the Med, retired/left, and am now doing 100 percent private practice at Campbell Clinic, doing mostly upperextremity, at my request. (CX. #4, p. 7-8).

At the time the claimant came into The Med, Dr. Wood was in charge of one of the services of

The Med. Dr. Wood observed that since the claimant’s complaint was a major upper extremity

problem, he did the majority of the surgeries on him, although not the original surgery. Dr.

28

Wood’s testimony reflects, regarding the course of the claimant’s medical treatment at The Med:

Well, I’ll refer to The Med record. I did not see him the day hecame in. He was treated by one of my partners. He originally came in under the care of Dr. Calandruccio, an upper extremity expert in our group.He was operated on the day of admission and I presume injury, July 7th, of2007. I don’t know what day that was, I think - - but I probably picked himup the next day, it was a weekday, and continued, from our morning report- - and then, continued on thereafter.

His history and physical, which I have, doesn’t have my signature onit. So I can’t tell you exactly when I saw him, since I don’t have The Medrecord for the - - there will be a note in there when I first saw him, whichwould probably be the next day or shortly thereafter. (CX. #4, p. 8-9).

Dr. Wood testified regarding the claimant’s injuries at the time of his admission to The Med:

I’ll use the discharge summary from the hospital. Actually, let mego through his - - from our consult, which was done on the day he came in,it was recorded that he had an open fracture of his left radius and ulnar.He also had an injury to his right eye, globe injury. And he had pulmonaryinjuries and was in respiratory distress, according to the resident who evaluated him initially. His forearm injury is an understatement. He had severe, massive open wounds with segmental loss of his radius and ulna,that’s the two bones in the forearm. The required shortening by Dr. Calandruccio.

He later went on to develop compartment syndrome. His hand andarm required debridement of the muscle on the top of his arm that extendthe fingers. He had injuries to both the median and ulnar nerves, and theywere not functioning well. So he had multiple injuries.

I’ll take from my office note, which is probably the best way of going at this, my initial office note, which was July 26th, 2007, after Ricky’sbeen discharged, and I’ll just read my history from that. He was 39. He sustained multiple injuries when a - - I have a car tire blew up. I think it’sa car tire blew up on the job. Was blinded by the injury, had a - - and that was in one eye. Had an open fracture of both bones, which was segmental.He developed a compartment syndrome requiring debridement of a sizableportion of extensor muscles, primarily from the blast of the tire. His arm wasshortened four centimeters. He complained of numbness on his right armforearm down to the level of the wrist.

. . . . . His eyes have improved by that time. And I had donea groin flap to cover a large open wound on the top of his arm.

The diagnoses that I listed at that time were the complex open wound,loss of extensor muscles, open fractures of the radius and ulna with

29

shortening. Contusion of the lateral antebrachial cutaneous nerve, and median nerve dysfunction on the left. And he also had stiff fingers by thattime. So he had extensive injury to his forearm. And that doesn’t includethe injuries to his eye and his chest injuries. (CX. #4, p. 9-11).

The evidence in the record reflects that the cost of the claimant’s admission to The Med

from July 7, 2007 through July 19, 2007, totaled $179,559.45. Dr. Wood testified that the

claimant’s admission to The Med during the afore period was necessary medical care. Following

his discharge from The Med on July 19, 2007, the claimant was seen in follow-up at a Mexplex

Clinic, commencing August 2, 2007.

Dr. Wood testified that on August 28, 2007, the case manager, Sharon McCarroll, called

to inform that workers’ compensation carrier would no longer cover the expenses for the

claimant’s care, and that the workers’ compensation claim had been denied. Dr. Wood noted that

the claimant required medical treatment on the August 28, 2007, date:

He still needed his IV antibiotics. He needed to be followed.And he would need additional reconstructive surgery to regain functionof his hand. (CX. #4, p. 35).

The claimant was next seen by Dr. Wood on September 6, 2007. Regarding the purpose of the

afore visit, Dr. Wood testified:

Basically, to follow him up. He had also stated to us that he wasgoing to Ohio. So I wanted to get everything down, so we could transcripthis treatment and to where he was going to pick up on his care in Ohio.(CX. #4, p. 37).

The claimant was last seen by Dr. Wood on September 6, 2007. Dr. Wood noted regarding the

last contact involving the claimant:

Let me see. This was on the telephone. November 13th, of 2007, received a call from Louise Van Buren with a doctor’s office at 217-554-8743 inquiring about worker’s compensation care, et cetera. I left a voice-

30

mail message, that would be my secretary, about the status of the patient.But as far as I know, we never received a release of information for the records. (CX. #4, p. 38).

While Dr. Wood has not seen the claimant since the September 6, 2007, visit, at the time of the

November 19, 2008, deposition the claimant had a pending scheduled appointment to be

evaluated. Dr. Wood testified regarding his expectation of permanency from the injury:

Definitely. Yes, there would be a definite level of permanentinjury, depending on how much came back and how much function hehas. I would say it’s going to be relatively high from an extremity standpoint. (CX. #4, p. 42).

Dr. Wood’s testimony reflects with respect to the claimant’s other injuries growing out of the

July 6, 2007, accident, in addition to his left upper extremity:

His eye, and he had pulmonary injuries. And I’m not sure of anyother. He did have a concussion, because his Glasgow Coma Scale wasdiminished on return (phonetic). So there’s some brain injury, but obviously, a mild. Normal Glasgow Coma Scale normally is 15. He’swas 12. So it’s just slightly altered.

Some kind of mild brain problem. (CX. #4, p. 43).

During cross-examination, Dr. Wood elaborated regarding the mild nature of the

claimant’s concussion:

Well, yeah, sometimes with brain derangement, because he hada Glasgow - - the original, I think, if you read the - - I’ll read from the discharge summary. He had a Glasgow - - and this is from page 26 ofhis supplied records, the discharge summary and a physical examination,so the examination when he came in. He had lift eyebrow laceration, bilateral breath sound, soft abdomen, non-tender and non-distended. The patient had a left wrist open fracture, burns and abrasions.

. . . And the patient had a GCS or Glasgow Coma Scale of 12, scored one, five and six. And a normal Glasgow Coma Scale, I believe , is 15.So he had some impairment of mental function. (CX. #4, p. 44-45).

31

Dr. Raimantas Drublionis, a Geneva, Ohio, primary care physician, is board certified in

internal medicine. During his November 5, 2008, deposition Dr. Drublionis testified regarding his

treatment of the claimant in his practice:

Yes. And basically I can tell when was the first time he came here.Let me see. Basically, the first time he came was on October 1st of 2007. He came for what we call the Ohio Department of Health, and a physical examination for - - for State Insurance.

Yes, for medicaid. They have special papers for evaluating hiseligibility for the state medicaid program. So that October 1st of 2007.(CX. #3, p. 6).

Regarding his physical examination of the claimant during the October 1, 2007, visit, Dr.

Drublionis testified:

Yes. I did an exam, but basically it was an examination that wasmore related to his ability to work at that point. And I made recommendationfor that medicaid program, and also a recommendation that he was not ableto work at that point. (CX. #3, p. 6).

With respect to further medical treatment, Dr. Drublionis’ testimony reflects:

My opinion is that he needed basically to see a hand surgeon orhand specialist just for further evaluation and possible surgical interventionof that. (CX.#3, p. 14).

The claimant was referred by Drublionis to Dr. Jason Ganz, a Cleveland, Ohio plastic surgeon.

The claimant was again seen by Dr. Drublionis on October 30, 2007:

Basically, he was not feeling good and not able to use his left hand.Also, he was depressed. I basically diagnosed him with post traumatic stress disorder after event accident, started him on antidepressants. Also,I referred him to physical therapy and occupational therapy to start workingwith his hand. (CX #3, p. 16-17).

In addition to the hand surgeon, the testimony of Dr. Drublionis reflects that he referred the

claimant to an ophthalmologist for and evaluation for his left eye cataract.. The claimant also

32

relayed complaints to Dr. Drublionis of short-term memory difficulties, headaches, and

intermittent balance problems all of which he attributed to the July 6, 2007, accident.

The claimant was seen by Dr. Drublionis on August 8, 2008, for an evaluation pursuant to

Ohio Department of Job and Family Services. The results of the August 8, 2008, evaluation were

similar to prior October 1, 2007, evaluation. The claimant was last seen by Dr. Drublionis on

October 31, 2008, at which time that had been a minimal improvement in his left hand in that he

was able to put his fingers together.

On September 23, 2008, Dr. Drublionis referred the claimant to Dr. Patrick

Hergenroeder, a local orthopedic surgeon, for an evaluation. While he has not received a written

report from Dr. Hergenroeder of the evaluation, Dr. Drublionis had an opportunity to review a

note authored by same:

Basically, he states that he thinks that there is not much that canbe done for his hand. The patient might get a few more degrees of motion,but there is so much contracture and scarring of extensor tendons, that there is no operation that is going to return the function of that hand.(CX. #3, p. 27).

Dr. Drublionis testified that it was his understanding that Dr. Hergenroeder is a general

orthopedist, and as such he recommended that the claimant be seen for a second opinion by a

hand specialist, such as Dr. Ganz.

Dr. Jason Ganz, whose specialty is hand surgery, and not reconstructive surgery, testified

regarding the extent and nature of his contact with the claimant:

He was referred to me most directly by, I assume, his primary caredoctor, Dr. Drublionis, to resume his case, which was initiated at Tennessee after his injury. I first saw him on November 14, 2007.

The purpose of the referral was for me to continue the treatment

33

of his left hand injury, which he sustained in July of 2007. The initial injury was treated and the first date of his reconstruction began in Tennessee. He then moved to Cleveland for personal reasons, and I wasconsulted to resume his care at that point. (CX. #2, p. 5).

Dr. Ganz’s testimony reflects, regarding the results of his evaluation of the claimant during the

first visit:

My findings in looking at him was that he had a groin flap, whichwas applied to the dorsal of his right arm and wrist. The groin flap appearsto have healed well, though somewhat bulky. The most notable findingI had was that he had severe stiffness of his MCP and PIP joints on his lefthand.

* * *

The MPC is the metacarpal phalangel joint. The PIP joint is theproximal interphalangeal joint. So basically it’s the first joint at the baseof each finger; and the first knuckle on the finger are the joints that wereaffected, and they were essentially stiff in full extension, so the fingers andthe hand were essentially straight. (CX. #2, p. 6, 8).

Regarding possible surgical intervention which would improve the claimant’s hand, Dr. Ganz

testified:

Yes; but at that time, no. I think given the degree of his stiffness,and my understanding the he had lost all of the extension tendons to his hand in the injury, meaning the tendons that normally straighten the knuckleswere gone, there was no surgical intervention indicated at that time, though,ideally he would have surgical intervention down the road.

The thing that was holding me back on operating was the degree of stiffness. The operation I would have preferred to have done would have been a tendon transfer, meaning essentially take a tendon that isn’t neededsomewhere else in the body and use that to reconstruct the tendons that weremissing. In order to do that, though, you need to have a full passive motionof the joint, meaning that I should be able to move the joint freely in all directions, the joints involved. (CX. #2, p. 9).

Dr. Ganz recommended that the claimant undergo occupational therapy with the main intent of

improving the passive range of motion with the hope of performing a tendon transfer.

34

The claimant was again seen by Dr. Ganz on December 12, 2007. Regarding the afore

visit, Dr. Ganz testified:

By his report, he had begun physical therapy; however, his first visit to the therapist, according to my notes, was about a week later. Myfinding was that his range of motion was essentially unchanged at that point. (CX. #2, p. 15).

Dr. Ganz’s recommendations remained the same. Dr. Ganz has not seen the claimant since the

December 12, 2007, visit, although he has received reports of his physical therapist. After

noting the progress reflected in the physical therapy notes regarding the claimant, Dr. Ganz was

questioned regarding the claimant’s ability to return to work driving a truck:

That’s difficult to say. My impression would be yes, but that’sa decision that I would defer and I would make in conjunction with the occupational therapist. They would perform what’s called a functionalcapacity evaluation where they are able to quantify exactly what he cando and perform any vocational rehabilitation that he may need so they can test him in a similar setting to what he’d be performing at work, to help determine whether it is safe for him to go to work or whether he canphysically perform the tasks at work. That’s a decision I would make after the fact; but the goal of performing surgery would be for him to be able to go back to work. (CX. #2, p. 33).

After a thorough consideration of all of the evidence in this record, to include the

testimony of the witnesses, review of the medical reports and other documentary evidence,

application of the appropriate statutory provisions and applicable case law, I make the following:

FINDINGS

1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.

2. On July 6, 2007, the relationship of employee-employer-carrier existed among the

parties, when the claimant earned wages sufficient to entitle his to weekly compensation benefits

at the rate of $504.00/$378.00, for temporary total/permanent partial disability.

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3. On July 6, 2007, the claimant did not sustained injuries arising out of and in the

course of his employment with respondents.

CONCLUSIONS

On July 6, 2007, the claimant sustained injuries while attempting to extinguish a fire on

equipment that he was operating in his employment with respondent-employer. Neither the

occurrence of the July 6, 2007, accident or the nature or extent of the injuries sustained by the

claimant in the accident is disputed. Claimant asserts that as a result of the injuries, which he

maintains were sustained within the course and scope of his employment, and at a time that

employment services were being rendered, he incurred medical expenses and was rendered totally

incapacitated from engaging in gainful employment. Claimant seeks corresponding medical and

temporary total disability benefits as well as controverted attorney fees. Respondents take the

position that the claimant was not within the course and scope of his employment when he

deviated form his route, at the time he suffered the accidental injuries of July 6, 2007.

The present claim is one governed by the provisions of Act 796 of 1993, in that the

claimant asserts entitlement to workers’ compensation benefits as a result of an injury having been

sustained subsequent to the effective date of the afore provision. To be compensable an injury

must arise out of and in the course of employment. Ark. Code Ann. §11-9-102 (4)(A)(i). An

injury is not compensable if it was inflicted upon an employee at a time when employment services

were not being performed. Ark. Code Ann. §11-9-102 (4)(B)(iii). An employee is performing

“employment services” when the employee is doing something that is generally required by the

employer. Collins v. Excel Specialty Products, 347 Ark 811, 69 S.W.3d 14 (2002).

The same test used to determine whether an employee is performing “employment

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services” as to whether an employee is acting within “the course and scope of employment”,

which is whether the injury occurred within the time and space boundaries of the employment,

when the employee is carrying out the employer’s purpose or advancing the employer’s interest

directly or indirectly. Noteworthy in the “going and coming” rule which ordinarily precludes

recovery for an injury sustained while the employee is going to or returning from his place of

employment because an employee is generally not acting within the course of employment when

traveling to and from the workplace. Olsten Kimberly Quality Care v. Petty, 55 Ark. App. 343,

934 S.W.2d 956 (1996).

In the instant claim, neither the occurrence of the July 6, 2007, accident nor the severity of

the injuries sustained by the claimant is disputed. The claimant was employed as a truck driver for

respondent-employer. The claimant was paid 25% of the load that transported. The claimant

operated equipment of respondent-employer. Respondent-employer was responsible for the

maintenance and repair of the vehicle operated by the claimant. Additionally, respondent-

employer furnished/paid for the fuel utilized by the claimant in transporting his load. Respondent-

employer did not direct the claimant’s route.

The evidence preponderates that the claimant had permission from respondent-employer

to spend the night at his grandmother’s resident on July 6, 2007. Claimant was transporting a

oversize load, steel I-beams, which required the issuance of a permit by the Arkansas Highway &

Transportation Department. The permit issued in connection with the claimant’s July 6, 2007,

load was valid through July 8, 2007, in terms of transporting the load through the State of

Arkansas. The claimant, in obtaining permission from respondent-employer to visit his

grandmother, planned and so conveyed to respondent-employer, to spend the night at his

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grandmother’s Beedeville resident and re-start his DOT log the following morning.

The claimant’s injuries were sustained when he was attempting to extinguish a fire on

respondent-owned equipment. At the time of the accident, the claimant was on U.S. Highway 63,

and driving in a northwesterly direction en route to the resident of his grandmother in Beedeville.

The claimant’s load was destined for the Dallas/Ft. Worth area. While the claimant had

permission of his employer to go by and visit with his grandmother while delivering the load, the

visit represent a personal side trip for the claimant as well as a “substantial deviation” from his

business trip and was not in the course of his employment. Lytle v. Arkansas Trucking Services,

54 Ark. App. 73, 923 S.W.2d 292 (1996).

With permission from his employer to visit/or spend the night at his grandmother’s

residence on July 6, 2007, and with the clear intention of the afore providing an opportunity to

“re-start” his log, the claimant’s departure from the route designated on the permit was analogous

to departing work for the day with the intent to resume same the following day, July 7, 2007.

Any injury sustained during the afore would be governed by the “going and coming” rule, which

precludes recovery because the employee is generally not acting within the course of employment

when traveling to and from the workplace.

The claimant has failed to sustain his burden of proof by a preponderance of the evidence

that the accidental injuries he sustained on July 6, 2007, were within the course of his employment

with respondents. The claimant is respectfully denied and dismissed.

IT IS SO ORDERED.

________________________________________________ Andrew L. Blood, ADMINISTRATIVE LAW JUDGE

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